United Blood Services, Div. Of Blood Systems, Inc. v. Quintana

827 P.2d 509 (1992)

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Nature of the Case

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Facts

D is a non-profit blood banking division of Blood Systems, Inc., and operates blood centers throughout the western United States. In April 1983 D received blood from a donor and then processed the blood for use in medical treatment. The blood was transferred to Southwest Memorial Hospital in Cortez, Colorado. P suffered a gunshot wound and was taken to Southwest Memorial Hospital, where she underwent emergency surgery. P received several units of whole blood and fresh frozen plasma which had been collected and processed by D. Approximately one year after the surgery, P began to experience a number of symptoms consistent with the presence of the AIDS virus, and in November 1985 she tested positive for the virus. P subsequently developed AIDS-Related Complex (ARC), which precedes full-blown AIDS, and she ultimately was diagnosed as suffering from AIDS. The donor of the unit of blood collected in April 1983 and given to P tested positive for the AIDS virus. D learned from the donor's physician that the donor pursued a 'gay lifestyle.' P sued D for negligence for D's failure to properly screen the blood donor for potential infection with the AIDS virus. D claimed that its screening and testing procedures satisfied the applicable standard of care and denied the allegations of negligence. D filed a motion to preclude P's expert witnesses from rendering an expert opinion on the standard of care applicable to D's blood banking operations. As of January 1983, there was ample evidence available to the medical community that the AIDS virus was transmissible in blood and blood products and that the highest risk groups for AIDS were homosexual males, intravenous drug users, Haitians, and hemophiliacs. It was also clear that in early 1983 blood banks ignored the warnings and advice of AIDS experts and were negligent in not implementing more stringent screening and testing procedures then available The trial court ruled that the acquisition, preparation, and transfer of blood and its components for purposes of medical treatment is 'the performance of a medical service' and that procedures utilized by D in 1983 to protect the blood supply against the risk of AIDS contamination must be evaluated according to the professional standard of the blood banking community rather than the general standard of reasonable care. P's expert was not directly practicing in the blood banking industry, so the court ruled that he would not be permitted to testify that the screening and testing procedures of the blood banking community were substandard and unreasonably deficient in safeguarding transfusion recipients from AIDS contamination. On January 14, 1983, the National Hemophilia Foundation issued a memorandum containing recommendations to prevent AIDS in patients suffering from hemophilia. Source plasma centers thereafter initiated aggressive donor screening by asking if the donor was homosexual, an intravenous drug-user, had recently arrived from Haiti or was a hemophiliac. In addition, source plasma centers began to examine donors for lymphadenopathy, which is symptomatic of ARC and AIDS, and also began to implement surrogate testing of blood. On March 24, 1983, the Food and Drug Administration issued a memorandum to 'all establishments collecting human blood for transfusion' and a separate memorandum to 'all establishments collecting source plasma.' The memorandum recommended that blood centers institute additional measures 'designed to decrease blood collection from individual donors and donor groups known to be at increased risk for transmitting AIDS.' This group included sexually active homosexual and bisexual men with multiple partners, Haitian entrants to the United States, and intravenous drug users. D had revised its donor screening process in response to the Food and Drug Administration's recommendations. The screening procedures followed by D at this time included the following: (1) providing prospective donors with specific information about AIDS, the groups at risk and signs and symptoms of the disease, and then requesting that prospective donors defer themselves if appropriate; (2) specific questioning of donors as to whether they understood the AIDS information and whether they were in good health at that time; (3) examining donors for skin lesions or intravenous needle tracks; (4) deferring those donors who had exposure to malaria or hepatitis B and thereby screening out Haitians and many homosexuals; (5) asking questions designed to elicit symptoms of the disease; (6) directing recruitment efforts away from high risk groups; and (7) educating the public as to groups at risk and the danger posed by members of such groups donating blood. The screening procedures did not include the aggressive questioning and physical examination of blood donors as recommended by the National Hemophilia Foundation. Nor did D employ surrogate testing of donated blood, as had been instituted by source plasma centers in early 1983. The court also refused to permit P to present testimony from another expert witness, Doctor Thomas Asher, a microbiologist, who had performed epidemiological research for the Centers for Disease Control and had thirty years experience in the blood banking industry. Doctor Asher would have testified that the screening and testing procedures utilized by the entire blood banking industry in April 1983 were substandard and unreasonably deficient in guarding against the transmission of AIDS through blood transfusion. The trial court instructed the jury that 'negligence means the failure to meet the standard of care of other establishments in the industry at that time, as established by the testimony of one or more expert witnesses.' The jury returned a general verdict in favor of D. The court of appeals reversed the judgment and remanded the case for a new trial. The court of appeals held that, contrary to the trial court's pretrial ruling, section 13-22-104(2), 6A C.R.S. (1987), incorporates no standard of liability other than 'negligence or willful misconduct.' It was the court of appeals' view that the blood banking industry, although partially composed of professionals, lacks the defining characteristics of a profession and that the accepted or customary practices of similarly trained and situated professionals should not have been considered as conclusive evidence of the professional standard of care applicable to D's conduct. Thus, the ordinary principles of negligence were to govern P's claims, and D's conduct should be measured against what a reasonable and prudent blood bank would or should have done under the same or similar circumstances. D appealed.